HomeMy WebLinkAbout14-4785 Supreme Court of-Pennsylvania
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[I Complaint ❑ Writ of Summons ❑ Petition
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(check ane) ❑outside arbitration limits
O
N Is this a Class Action Suit? ❑Yes Cho Is this an MDJAppeal? ❑ Yes C9-Ko
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Updated 1/112011
t
JAMES D. HOLT and IN THE COURT OF COMMON PLEAS
CAROLYN L. HOLT OF CUMBERLAND COUNTY,
PENNSYLVANIA
Plaintiffs
N. CIVIL ACTION - LAW
BERKS AND BEYOND EMPLOYMENT �, s
SERVICE, INC. -1-M Wiz:.
Defendant NO.: 2014- ql
COMPLAINT1'
AND NOW, come James D. Holt and Carolyn L. Holt, by and through their
attorneys, Frey and Tiley, and file this Complaint of which the following is a statement:
1. The Plaintiffs are James D. Holt and Carolyn L. Holt, adult individuals, of
19 Enck Drive, Boiling Springs, Pennsylvania 17007-9727. (Hereinafter referred to as
"Plaintiff' or "Landlord.")
2. Defendant is Berks and Beyond Employment Service, Inc., of 926 Penn
Avenue, Wyomissing, Pennsylvania 19610-3017; also having a place of business at:
1909 Ritner Highway, #1, Carlisle, Cumberland County, Pennsylvania 17013.
(Hereinafter referred to as "Defendant" or "Tenant.")
3. On or about September 1, 2011 Plaintiffs as "Landlord" and Defendant as
"Tenant" entered into a "Commercial Lease Contract," a copy of which is attached
hereto as Exhibit "A" and is incorporated herein as if fully set forth herein. (Hereinafter
referred to as the "Lease.")
1-2,00q
Cmmnlnint— Nnit v_ Berks and Bevond Page I of 5
4. The Lease provides for the rental of office space which is a portion of the
first floor of the building known as 300 South Hanover Street, Carlisle, Pennsylvania
17013. (Lease page 1, lines 14-19.)
5. The initial term of the Lease was from September 1, 2011 to February 28,
2013. (Lease page 1, lines 26-30.)
6. The Lease provides for rent in the amount of$1,000.00 per month, and a
$1,000.00 security deposit. The Lease acknowledges receipt by Landlord of the
security deposit and first month's rent. (Lease page 1, lines 40-50.) Tenant is also
responsible for all utilities. (Lease page 2, line 108, through page 3, line 117.)
7. On or about March 1, 2013 the Plaintiff and Defendant entered into a
"Supplemental Lease Provision," a copy of which is attached hereto as Exhibit "B" and
is incorporated herein as if fully set forth herein. The Supplemental Lease Provision
extends the term to August 31, 2013 and provides for a Renewal Term from September
1, 2013 to February 28, 2014. The lease automatically renews for the Renewal Term
unless Landlord or Tenant give notice to the other at least 120 days prior to August 31,
2013.
8. Neither Landlord nor Tenant gave notice 120 days prior to August 31,
2013 of their intention not to allow the lease to automatically renew for the Renewal
Term of September 1, 2013 to February 28, 2014.
9. On or about September 6, 2013 Defendant sent a letter to Plaintiff which
constituted an anticipatory breach of the Lease. A copy of the September 6, 2013 letter
isattached hereto as Exhibit "C" and is incorporated herein as if fully set forth herein.
The Defendant's letter states that Plaintiff breached the Lease by way of"... the Heating
system was functioning improperly in that the air conditioning ceased working..." and
that the Defendant intended to vacate the premises on September 30th
Complaint—Holt v. Berks and Beyond Page 2 of 5
10. Landlord did not breach the Lease because, inter alia.:
(a) The Lease states that Landlord is to provide "Heater Maintenance
not central air conditioning maintenance. (Lease page 3, line 119.)
(b) The leased premises is heated with electric baseboard heat. The
property had a separate central air conditioning system.
(c) Plaintiff James D. Holt specifically told Tenant during the initial
negotiations for the lease that the central air conditioning system
was old and that Tenant was free to use it for as long as it worked
but if it broke that would be the end of it and the property would
have no Landlord provided air conditioning.
11. Despite having no duty to provide air conditioning, Landlord desired to "go
the extra mile" for the Tenant and when the old central air conditioning system failed
Landlord provided Tenant with two portable air conditioning units, both floor standing
with window exhaust. These units are believed to be adequate to cool Tenant's office
suite. Tenant also installed a small window air conditioning unit although Landlord does
not believe that was necessary.
12. Landlord responded to Tenant by letter from the undersigned legal counsel
dated September 9, 2013, informing the Tenant that there was no duty on the part of
Landlord to provide air conditioning, no breach by Landlord, and that the Lease was in
force until February 28, 2014.
11 Nevertheless, Tenant vacated the premises sometime on or prior to
September 30, 2013 and has failed to pay rent or any other expenses since October 1,
2013.
14. Notwithstanding Tenant's breach of the Lease by failing to pay rent and
Complaint—Holt v. Berks and Beyond Page 3 of 5
A
utility charges, Landlord attempted to mitigate damages by re-renting the space. The
space was listed with a real estate agent until March of 2014. However, Landlord was
unable to secure another tenant prior to the end of the lease on February 28, 2014.
15. Tenant also breached the lease by failing to remove snow and ice after
tenant vacated the premises. (Lease page 3, lines 122-126.)
16. The Lease provides for a 5% Late Charge and interest at the rate of 1.5%
per month. (Lease page 1, line 52, through page 2, line 67.) The Lease also provides
for a $95.00 administrative fee, reimbursement for Landlord's time at the rate of$35.00
per hour, court costs, and attorney's fees. (Lease page 4, lines 211 through 215.) The
Lease makes Tenant responsible for any damages to the property. (Lease page 4,
lines 182 through 192.)
17. Landlord sent Tenant a written demand for payment by of a letter dated
March 17, 2014 from the undersigned counsel for Landlord to Tenant, a redacted copy
of which (without its attached settlement spreadsheet) is attached hereto as Exhibit "D"
and is incorporated herein as if fully set forth herein. The portions of the letter
concerning a settlement offer have been redacted.
18. Neither Landlord nor the undersigned counsel for Landlord have received
any response to the letter, and no money has been paid.
19. Including interest through July 31, 2014, Landlord has incurred net damages
in the amount of$6,782.81, as set forth in the spreadsheet attached hereto as Exhibit
"E" and which is incorporated herein as if fully set forth herein.
WHEREFORE, Plaintiff/Landlord prays Your Honorable Court for judgment
against Defendant/Tenant in the amount of$6,782.81, plus interest on unpaid rent at
the rate of 1.5% per month after July 31, 2014, plus attorney's fees and costs.
Complaint—Holt v. Berks and Beyond Page 4 of 5
Dated: /� �l� Respectfully submitted,
By
tep en D. Tiley, Esquire
Frey &Tiley
Counsel for Plaintiff
5 South Hanover Street
Carlisle, PA 17013
(717) 243-5838
Supreme Court I.D.#32318
VERIFICATION
I verify that the statements made in the foregoing Complaint are true and correct,
partially upon personal knowledge and partially upon my belief; to the extent language
in the Answer is that of my attorneys, I have relied upon my attorneys in making this
Verification. I understand that false statements herein are made and subject to the
penalties of 18 Pa. C.S. §4904 relating to unsworn falsification to authorities.
IL-74e�v
Dated: �� ll �D James . Holt
Dated: �y �� �ai� Car n L. Holt
Complaint—Holt v. Berks and Beyond Page 5 of 5
v
Commercial Lease 2011 1
1 COMNIERCUL LEASE CONTRACT'
2
3 PAIMMS
4
5 This Lase Dated Sw—tmdm—r L 2011 is between
6 LANDLORD JAMBS D.HOLT
7 ADDRESS ,19 Muck 2ft B-041w Snsrfnsa.PA 17th/9727 Phone Number 6717-7136700.1717-241-
8 "O home)$man Address dbjastfntlmeCa�nau.M here and atter ealled uLandlord",
9
10 and Tenant
11 Tenant's Name: Chris Ganw, President Berke asd Beyond EmoIbma d Service lac.926 l?enn Ave
12 Wyomissing.EA19610 herein Or celled"Tenant"
13
14 Property Address hereinalier called"Commercial Spade".
15 Commercial S+�1"ftor 300 S Hummm street Carlisle,PA 17013 whfcb hidtidw atlas ttio as
16 assiMel smite in the Mrfdna lot daring boars Mwadav—Friduy 8:30 a.m.-SM ass.
17 Rueatton•For)ria wduslve am ft t."seined■ eles*a waaneled ofidoe"_which is located at the rear ox
18 the commerela scare at tl�e nom*!!tet te++*tt�t liner. tAwlmrd also relates stress to the
19 2dEWMWMWkth0S0mmWMfiWM -
20
21 Tenant's Phone Number throagh which Tenant can be readied:610-587-4011 www
22
23 --
24 Tempt is individually responsible far all obligations ofthis Lease,including rent,late fees,damages and other
25 costs.
26 li$MM TRM
27
28 Start and End Dates of Lase(8158 called-Term-)
29 (A) Stud Date: Sestember I.All,at
30 () Bad date: February 28.2013 at 11
31 Powesdon: Tenant may move in(Wm possession ottere Commercial Space)on the Start Date ofthis Lease.
32
33
34
35 Tewnrr_PAVNrRNT AND SW-LW 'Y DEPOSIT
36 Payment Procedure:
37 Team agrees to pay their rent without demand either in person or by mail to be received by landlord ne later
38 than the_JA _of the mouth as scheduled below:
39
40 (A) The Tenant agrees that the total Rent due each month for the Raab'Term less follows:
41 $1,000.00 for each month SgWmber 1,2011,Febroary 29,2013.
42
43 The total amount of Rent due dieing this 19 month Rental Tam is..-S 1U.MM
44
45
46
47 Rent-Montes Recell"d:
48 Landlord hereby acknowledges receipt ofIN"upon execution ofthis document to be applied as follows:
49 a)���00 as payment for a month rent.
50 b) $14MOR as security dqMsft should there be damage and or the need for cteanfog.
51
52 Tenant Defauf s on the Payment of Any Mooffi's Rant:
53 If Tenant defaults on the payment of an y month's rest after the same becomes thus,the Tenant agrees to
54 pay a Late Charge in the amcant of(5%)of the unpaid real. In addition to the unpaid rent or portion
55 thereof and if ager(l0)tea days,inch rentor portion thereof remains urTeid i shalt accrue on the
Tenant Initials Landlord Initials rd
Commefdd Lease 2011 2
56 unpaid smms of money doe and owing to the Landlord by Tenant at the rate of one and one Imtf pendent
57 (1.5°6)per month an the balance uracil said amounts due and owing are paid in full.If within thirty(30)
58 days ofthe date va =doe thereof given by Hen headland to lice Tenant by ordinary mail,the heat is not
59 paid,or In case of a breach or evasion or any atm to break or evade any of the terms and cans of
60 this Commercial Kase Contract,the entire rent reserved for the fitll term ofthis,centrad shall b000me doe
61 and payable at one and may forthwith be collected by distress or otherwise,and at the same time the
62 landlord may forfeit and amml the urnarpired portion of the Commercial Lease Contrail and color upon ad
63- repossess the said eonmharciai Space with or without prviceas of law and without giving say notice
64 whatsoever,and if the Tenant shall become insolvent,make an aasimment fir the benefit of eiedhors,
65 commit any act of bankruptcy,or fib a voluntary peffim in bankruptcy,or any involuntary petition in
66 b Aropicy be filed must said Tem all the real reserved for the Sril term ofthis Commercial I.ease
67 Contract shag become doe and collectible immediately by distress or otherwise.
68
69 Form of Isom Payments:
70 Tungnt up=to pay rent,1a the fnan of Untied Sordes Curretity,a personal dhedc,an BUBMONIC BANK
71 CHFAM.a cashie:'s check,or a money order,made payable to Landlord.
72
73 Rent Dae Date&Lata Date:
74 The doe date for rent owing under this Lease Contract Agreement Is the(1')first day of each car month.
75 Read is cemsidered tabs if the Landlord does not receive:the payment in person,or through the mal on of befin+e
76 tlhe 1st day of the mouth.
77
78 Seem*Dgmdb
79 This paragraph serves as wrifta Notice that the Landlord is holding the Tenant's Security Deposit in an
80 to mg,bearing Emew Aewmt atthe M&T B=k boated to Nolflng SprbW4 Pumosylvania•
81
82 Landlord's Rigbts to Fater:
83 Tenant agrees that at the Landlord's discretion, Landlord or Landlord's rive may enter the
84 Comm=W Space between the hours of 9:00am to 8VOpm 7 days a week to inspect,maintain,repair,supply
85 aatvices,to display the unit to prospective or actual.workmen,/contractors or show the Commercial Space to
86 prospective Tenants. Landlord will telephone the Tenant or maim an attempt to eonbact the Tenant providing 12
87 bora advanced notice. Tenant up=that the Landlord shall have the right to enter the Commercial Space at
88 anytime if the Landlord,at Landlord's diserabn,deems a situation to be as Panorgenay. Tenant may make
89 requests forrepairs and maintenance and the Landlord will give consideration to the request.
90
91 COND>P M OF,COMMBR AIL PROPET-1 AT MOVE IN
92
93 Tenant Impaction: As of die effective date of this Commercial Lease Contrail,the Tenant has completed an
94 iaspcctioa of the condition of the CMM ial Space, including the walls, floors, ceWn% light fnclores.
95 Mops, cabinet,carpet and drapes ad agrees that the space is in"as rhe'condition. Tho eecttical,
96 plumbing and seating systems we also in good vA, CII g order,except as noted by the Tenant in writing.The
97 Tenant acknowledges dist there is pet odor or odor caused by burning cagprettes,m other obn�odors in
98 the Cornmardal Space of nay kind as of the dame ofthis agreement.
99
100 Drain Stoppages: As of the date of this agreement,Landlord notes that die Commercial Space sewage drains
101 are in good working order and that they will accept tie normal household waste for which they were designed.
102 Drains will not accept things such as coffee grounds,tampon%and large wads of toilet paper,balls of fie,
103 food scraps,clothing or rags. Tenant agnea to pay for opening the drama d"d any stoppages ocean,except
104 thea which the plumber who is called by the landlord to deer the stoppage will attest in writing,ware caused
105 by defective phuabing,tree root,or act of Cod.
106
107 V'I'II S AND SBRVICB�:
108 Utilities:
109 The Tenant agrees to pay all utilities tat are separately metered.Tenant makes WdepoWeat arrangements with
110 all providers of utilities.The Tenant apm to pay all related service fees when dransitimft into or leaving then
1 l 1 Comm tclal Space. The Landlord will treat delinquent utility payments as a breach of Lem:Couftmt Tarrant
Teneld Initials I.andlotd Initials
Uv CV
Commuciei Lease 2011 3
112 agrees to notify Landlord of any into to disoomtiaue any ud*. Tenant froths agrees to Pay any damages dw
113 result from Tenant's falure to provide such nootim Landlord is not responsible tor loss of any service if
114 interrig6dby cirmunstaaas beyond Bee Landlord's control.
115
116 TENANT AGREES TO MAKE MEPENDBNT ARRANGEMENTS FOR THE FOLLOWING
117 SERVICES-
0 Electricity ® Natural on Haat 0 water and Sewer
® Cable Service ® Tel Service
13 Trasb-Recycling Removal 0 Computer Installation and
Network Services
118
119 LANDLORD AGREES TO PAY for the Ulowing services as )here:
® Sewer Makitenance** ® Lawn and Slumbbery Care 0 Header Maintenance
® Pest&Rodent Control ® Maintenance of Common Areas
120 *'Except as indicated in the sob section noted as DRAIN STOPPAGE
121
122 SnawRemaval:
123 Tenant agrees to keep steps,landings and sidewalks free of snow and ice. Tenant agrees to use non-corrosive
124 products only. In so doing tenant is taking safety measures to protea odux Tenets and clients.
125 Landlord will orange for now removal services relating to the driveway only when accumulations of naw
126 snow exceed 3 inches.
127
128 Teasnes can and use of the Comsencisl Spence:
129 The following mass and regalatioms apply:
130 landlords may add other rules and regulations at a later time provided that they have a legitimate Pwpose,
131 determined solely at the discretion,of the Landlord,and do not mtstsudally modify Tomes rights,surd not
132 become effective without not=of at least two(2)day& N the Tenant breaks any rules or regulations for the
133 leased Commercial Space,Tenant agrees that such action may be deemed a breach of the Lease Contract,at the
134 sole discretion of the landlord.
135
136 Tenant Agnes to:
137 1. Take all such action necessary to!Deep the Commercial Space aceto and sa&
138 2. Twat agrees to maintain liability insurance in the amount of$1,000,000.00 for personal injury and
139 $1,000,000 for property damage for each occurrence on the Commercial Space. At the time of inception a
140 certificate of inswunce will be Sled whh the Landlord. Should this lease be extended Tenant agneas to
141 continue to maintain such insurance.
142 3. Windows doors and Locks: Tenant agrees to be responsible for any windows, doors and locks, which
143 beconw craduA broken or hwporableduring the tenancy.
144 4. Locos: Tenant agrees not to change the locks on any door without first obtaining the written permission of
145 the Landlord. Should permission be granted,Tenant agrees to engage a professional locksmith to Gimp the
146 locks and to provide the Landlord with two Master Bays per lock within?A hours of srrch a change.
147 5. Disposal of Trash:Tenant Wees to dispose of all trash at least once each week using a single Recycling
148 Cantsinec and approved container supplied by the Borough of Corible or waste Mangpmwd ReSese Sa vke
149 of Camp Hill. Tenant agrees to be responsible to take their refte and recycling to curbside the evening
150 before rho regular day of trash pick up. Tenant agrees to keep the Counauviol.Space;ground level and
151 cantmaon arses clear of accumulating trash.
152 6. Smoke Detectors: Teams hereby admowb*p that the premises we egnaipped with working smoke
153 deters and icy lighlihK.
154 7.Notify Landlord:Teams agrees to notify Landlord immedintdy of any repairs needed and of any potentially
155 harraftd heabb or environmental condldons.
156 a. Btu use: Tenant agrees to use this Commercial Space as their StsHing business only and agrees,absent
157 written consent of rho Landlord,not to conduct any oilier business enterprise of any kind.
158 9. Skew Tenant agrees to Mm the applicable ndes and Wx1ficaetons of the Carlisle Borough when,
159 developing and affixing any s4pW to the exterior of the Commercial Space. Any and all approvals and
160 expenses relating to such slgasga shall be Bre resporesnU ty of the Tenant.
Tentmt Initials�� Landlord Initials
U CM
ARN
Commercial Lease 2011 4
161 10. Obey all Laws and comply with all Boren&Ordeanam
162
163 Tenant Wm Not
164
165 11. Transfer Lem or sublease(rent to another person)the Commercial Space or say part of the Conuvercial
166 Space widwat I,andloed's written permission.
167 12 Keep Oammable,hazardous and or ertplosIve materials in the Commercial Spaces
168 13. Dtahoy or deface any part of the Commercial Space or common moon areas.
169 14. Block my Fait or partially block any door,hall or stairway.
170 15. Make Changes to the Commercial Space,such as painft or remodeft without the written pezmisdm of
171 the Landlord. Tenant agrees that any changes or improvements made to any fixture will belong to the
172 Landlord. Tenant agrees not to slier paint or wallpaper the Commercial Spada wdhmA first obtaioing
173 Landlord's written perminion. Fntther, Tort agrees not to repair or modify the Commercial Space or
174 anything belonging to the Landlord without fast obtaining the Landlord's written permission.Tenant agrees
175 to hold Landlord harmless for any mechanics liana or proceedings,which Tenant causes. Alberati m made
176 by to Tenant become the property of the Landlord.
177 16. When the Tenant's actioua are the cause of eery damage Tenant apm to be ad*roV00 ible to pay the
178 cents for repmrmg any damage. Dourramation of wthedur Tenant is the cam of army damage is the sole
179 disaofm of the Landlord. Whom the action of the Tammes clients are ft surge of air damage the Teaout
180 agreas to be solely responsible to pay the costs for rig any damage.
181
182 CONDIfI'ION OF COMMERCIAL SPACE AT MOVR OUT
183 The Tenant agrees to pay all wrpeasea incurred is case Tenant caused any damagesff the Tem mss actioaa are
184 the carne of any damage the Tenant agcoes to pay the actual otpenae of repairs,labor,materbl and any other
185 fees applicable that can lamely be related to the damage. Tenant agrees that the Landlord shall have sole
186 discre coo to maim these determinadm of whether these has been damage or clung is needed Mould
187 cleaning services be required Tenant apses that such cleaning services shall be at the ratio of$45.00 per hour
188 plan the cost of cleaning products. In the caro of damage, whist is separate from cleaning, Landlord will
189 provide a stdoment of such egheasca for the hdxur and material to repair damage to the Tenant in accordance
190 with the PA landlord and Teoams'Act.
191 Teams also understands that sop►intentional damage maybe considered"criminal mischief",and is a crime
192 under Section 3304 of the Pmnaylvania C:3mes Code.
193
194 OTmm PBOVLSIONS OF THIS LEASE
195 Homing Over.
196 if Tenant remain on rho premises fallowing the date of their proposed date of tamination.of tenancy,they she
197 "holding over" or if damage or cleanliness doesn't allow a Now Tenant to timely tabs ova a new lease,the
198 Tenant agrees to pay for"rental damages"egosfmg ondwnth of the amount of their current monibly tact for
199 every day they hold over.
200
201 Seearrlty Depoait
202 Landkud will retina the sec urtty deposit to Tenant upon the termination of this agreement Van routs,fees and
203 dbmW we paid in full and if the Apartment is left then and endamagad. If Tenant is evicted for any reason or
204 abandca the premiaea Wm the and of the Lease Tent,the Security Deposit will be f r&hix.
205
206 Final Impecdos and Walk through:
207 The Tenant and Landlord will conduct a final inspection and walk through at the time the Ceanmacial Space
208 keys are returned. The Landlord will inspect for cleanliness and damage and report any deficiencies to the
209 Ten"in wrftg within 30 days.
210
211 Cost of Procedures if Rent is Unpaid:
212 ff Tenant does not pay the dative no and say applicable late fees for any month or breaches the tease for any
213 reason,a lawsuit may be commenced against Tenant Tenant agrees to pay the Landlord an adminismdve fee
214 of 0100 per filing plus thirty-five dollars per hour for Landlorft tinter,as well as my aaomey fees and legal
215 costs inctnied to collect rent due and or to evict Tenant.
216
Tenant Initials_�,�,�!� Landlord Initials
Commercial Lease 2011 S
217 Application of Funds to Amounts Owing:
218 All monies received flan Tenant shall be applied tbst to Late Charges,cora of oollecton,then to any damages,
219 then to delinquent rent, and only ager those an paid in full and all deliequaacies are satisrod win the
220 remainder,Kany remnaias,be applied to Rent ofthe Current Rental Period.
221
222 Rdnraed Chwi :
223 If fall any reason,a check used by the Tenant to pay rent or maim any payment to Landlord is returned from any
224 financial institution,without having been paid,Tenant agrees to pay a S2S.00 admWstrative See to reimburse
225 Landlord for bank and processing charges caused by Tenant's bad check. Until Tenant pays the rant in fall
226 together with nay late charges and bad check fee„ the Temmt will be deemed to be in violation of the
227 Commercial Lease Conhaa
228
229 Transfer of Leaser
230 landlord may transfer this Lease to a new owner. Tenant agrees that,absent an independent arrangement made
231 between Tenant and aacw owner,this Lease remains due some with a new owner.
232
233 Insurance Coualderatioua
234 Tenant agrees that Tenant will do nothing to the promises nor lacep anything on the pry which will ttsuit
235 in an.increase in the landlords insurance premiums or which might endanger the premises. Nor will they
236 knowingly allow anyone else to do as
237
238 l uding bears.
240 A.Tenant agrees that if Tenant bnaches Lease for any reason,LandloWs remedies may include any or all of
241 the botlowlng;
242 I. Taking possession of the Commercial Space by pining to cast to evict TenmL Tenant agates to pay
243 Landlord's legal fees and raeasuible costs,including the cost for Landlord or Landlord's amt to attend
244 court hearings.
245 1 Falling a lawsuit agabut Tenant for rents,damages and unpaid charges,and for rents and I S for the
246 rest of the Lease Term.
247 3. Keeping Tenant's Security deposit to be applied against unpaid rent or damages,or bot.
248 4. Acceleration of Rent;a p+oiisien to discourage to Tenant fomn defaulting.
249 Taunt agrees that the Landlord has provided d us written notice preserving the Landlord's right to
250 accelerate the stat in the event Tenant breaches the Lease C nftct. If the Tenant fails to pay real or more
251 than 2 wmgbs in a row,pays sat lane,abandons or breaks the Coammarcial Tam Contract,fails to pay
252 Uhlities on time, the Tenant agrees that Tenants actions convey the intention to breach the contractual
253 obligations of this Cnamner+cial Lease Coubsct.As such,the Tenant ac mowledges that time behaviors
254 coniituta material damsto the Landlord and dot thzso bebaviors the Landlord to seek the
255 immedide remedy through acceleration of no ratter than having to await the expiration. of the
256 Commercial Leese Contact. In afar words,if do Taut breaches the CAmmarcial Lease Contact the
257 Landlord preserves the HSU to collect the total amount of rent for the ohtire r m*md term of the Lease
258 Contact in adva co of the Tenant's eonthmed occupancy. Thu Landlord treed not give any prior wrWen
259 notice before executing this remedy.
260
261 Fire or Casualty Damage:
262 am a portion of rho Commercial Speoe become unusabh:doe to in or easuaity damage that is siguincamt
263 and not sniaor in nature Tenant is not responsible for sat on that portion useless as provided below. Landlord
264 has the sole discretion to decide whether tha Commercial Space is usable and what pordons are usable.
265 Lmrdlad is not responsible for repairing or replacing any Improvemeda made by Tenant if the improvements
266 are damaged. Should the fire or casualty dmnage have been caused by Tenant's own act or neglect;Tenant
267 shall not be relieved of to respomabil ty for payment of rent,and Tenant shall also boar the W re busty
268 for npalr of the damage.
269
270 Service of Process:
271 The Tenant agrees to be the recipient of any service of summons and otbw notices relative to the tenancy at the
272 property address listed above.
Tenant Initials Landlord Initials
Commercial Lease 2011 6
273
274 Mediation:
275 Viediation is an alternate way of attempting to resolve problems. A mediator may help dm disputing patties
276 reach an agreeable solute without having to involve the courts. Landlord and Tanat may agrce to take any
277 disputes arising Sum this Lease to mediation by the local association of REALTORS or another
278 Landlord and Tenant can sign an agreement to mediate after a dispute arises if bath parties agree to abide by the
279 decision of the medistor. Both patties win split the costs asswatod with nmodiation unless the landlord is
280 upheld on any fact in the dispute In each an eves the Tenant agrees to pay all costa of mediation.
281
282 Attorneys Fees:
283 If Landlord shall bring a caw of action against the Tenant for enfommnent of the amt and prevails on
284 any fact,the Tenant agrees to pay reasonable cads and attorney's fees involved.
285
286 Non-waiver:
287 should either Landlord or Tenant waive their rights to enforce any breach of this agreement,that waiver awl
288 be considered temporary and not a continuing wain of any later similar breach. Although Landlord may know
289 when accepting rent that Tenant is vialating acme or more of the conditions in the agmement, Landlord's
290 acceptance of runt is in no way waiving Landlord's rlghn to enforce She breach. Neither Landlord nor Tenant
291 shall have waived dm:k rights to enforce any breach unless they agree to a waiver In.wring.
292
293 tried Provisions Not Affecting Ill Provisioner
294 Should aur item in this agreement be found to be c mdrary to aur local,state,or fiaderal law,such provision
295 shall be considered min and void,just as if it neva appeared in this agreement,it shall.not affect the validity of
296 any other item in this apeanent,
297
298 LEAD 8Am PAm—LEAD nAZARD6 Dscimm RBQUIRnam s
299 Now of Lanc>Lotd:Janes A Holt tit Caroh►n L Rost
300 NomoofTenut
301 I.eascd Premise: Czommercial Iocatad at 300 3 Hanaver�heet( iso,P�,17013
302 1. Landlord is required by Fedeak law to disclose to the Tema (s) ink about lead-based paint
303 hamrds at the leased penises.
304 2. Each Tenant hereby acknowledges reoeipt from I.andlmd a Dopy of the pamphlet entitled PR02FCr
305 YOUR FAAMY FB011tl'LEW JN YOURHOME
306 3. The hollowing marked with a(J)applies to the leased pi mrtise:
307 _ X _Landlord her no knowledge of any lead4 aced paint at the tossed prises.
308 1 JMdlozd DOES have knowledge of lead b ised paint at 1h a leased p mmnma. Reports and
309 information about lead based paiut ale available dining regWar offYce hours for Tenant to read at die office
310 ofthe Landlord.
311 4. 'Ile information given by Landlord is certified to be true and correct to the bast of Landicadd's knowledge
312 and belies;
313 Date signed by
314
315 Date signed by Tenant: Sigua�
317 LEAD WARNING SPATEM[lMr.
318 Housing bolt befare 1978 may contain ked-based p*L Lead f m Imit,paint rhes,and durst can pose health
319 1 1 N not taken care of properly. Lead exposure is especially harmfkd to young children and preguaut
320 women. Before renting pre—1978 housing,Landlords roust disclose the presence of known lead-based paw
321 and lead-based point hazards in the dwelling Tenant must also receive a federally approved paler on lead
322 poisoning prevention.
323
324 IIuaRMATION REGARDING MOLD AND vwwR AIR QUALITY
325 Indoor mold contamination and the inbalation of bdoset+osols(bacteria,mold spores,pollen,and viruses)have
326 been associated with allergic ru:sponaes including appear respiratory congestion, cough, mucous membrane
327 hrhMJM Bever,drilla,muscle ache or other transient infiAmmation or anergy. Claims have been made that
328 wpmw to mold mon and bioammols has led to serious infection,' and Mnm of
Tenant b itials Landlord Initials
ConmmxcW Lease 2011 7
329 neuro or systmdc tmdchy. Sampling of indoor air quality and other mathods exist to determine the presence
330 and scope of ate►indoor contamination. Hearne individuals may be affected difierendy,or not affected at aR
331 by mold coulaminsdom the anneal a Vwmh to dekrmim the pmsew of mon is to =gap the
332 services of a qualified professional to mndertslm an assessment and or sampling. Assessments and sampling for
333 Aro presem of mold coubm ination can be perfomred by a qualified industrial hygienists, engineers, or
334 laboratory that offer these services. information perming to indoor air gaslity is available through the United
335 Swes Environmental Protudon Agency and may be obtained by contacting IAQ DW. P.O. Banc 37133,
336 Wasbho wk D.C.200133-7133, 1800.438.4318. Tenant should lnmmdia2*notify Ford if there is any
337 condition in the Property that may lead to the growth of mold or if the Teamd believes that mold powth Is
338 present is the Property.
339
340 Information Regarding Tenant Rights:
341 Landlord currant increase rents,decrease services or threaten to go to cm t to evict Tenant because TmmL I.
342 Maines a reasonable complaint(a)to a government sgmq or to Landlord about a building or housing code
343 viola;(2)argmizes or joi ns a Tenant's ori;or(3)ones Tenant's legal riglus in a lawful a
344
345 Rdereaees In wording:
346 Phual references made to the parties involved In this agreement may also be sngcdar,and singular rem
347 may be ptmal. These ref renes also apply to Laadlcrd and Temut's heirs, exam ors, admfnistrstors, of
348 successors,as the case may be.
349
350 consegaam&Charges:
351 Tenant agrees that violation of any part of this agreement or mopayment of rent vAm due shall be cause for
352 cvkdma under appMriate sections of Pe nsy nda Law. Tenant agrees that sir breach of the above roles by a
353 Tent will be considered a breach of the entire Comnerc ial Lege Contract.
354
355 Entire Agreement:
356 As writtm this agreement and any supplements constitute the entire agirem m t between the Tenant and
357 Futile%. Tenant and Landlord have made no further promises of any kind to one another,nor have they
358 reached nay other undr;rsmndings,either verbal or written. Unless a Supplement to this Comm=W Lease
359 Contract is ammli+ed,this represents the moire Commercial lease Contract.
360
361 Aeimowledli meat:
362 Tenant hereby agrees that they have read this agreement had an opportunity to negotiate its terata,
363 analerstand it,agree to it,and have been gi m a eopy of IL
364
365
366 367 1.aodiord
368
369
370
371
373 Data �,1 Tenant
374
Tenant Initials lAn&ord Initials
300 S Hanover Street
Carlisle,PA 17013
Jannary23,2013
Supplemental Lease Provision
Whereas: The Landlord andTemaot entered an odOW cease on 8/18/11,for the period
of Septetnba 1,2011 to Febtuary 28,2013;
WLasas,original lease provision entided Entire Agreement fim d on Page 7,indicates
that tie terms of the original lease may be modified by a Supplemental Agreement;
Whereas,tie landlord desires to modify certain pmvislon of the original lease upon the
num relic xnewal ofthe original lease;
Now therefore,the parties agree to the following SaWernental Lease Provisions:
New Laneuasa Phrases Nd Terms:
Rental Term
RentalTerm also called('°Term'
Start and End Dates of Lease(also called`°Perm')
(A)Start Date:Marek L 2013at 12m a.m.End dace:Amma 31.2013.at 1=go,
Renewal Tam
(1)Start Data:Sevtamber 1.2013.at 12:00 a.m.End Data I+eb=m 28.2010.at
11:59 sen.
ReaewdTeant
Tib Inas w[D AUMMAMCALLY RENEW for the came TE RK eWledtlto F"MAL TERM at tie
End Dom oftots Lem Tam dam bed In(,A,3� above mlesx
1.Tee®t Siva L=dlwd a lent 1°�7' °°do0 betbae the End Dam orbefine the end of
cadgivesTew aatlent
dtyys vrz aetleett/vacs$bafotelie Fad Dam orbe[tme
ft and ofaW Reowd Team.
Tenant hereby agrees that they have read this Supplemental Agrc mmt an had an
opportunity to negotiate Its terms,undcrw::dA agree to in and have been given a
copy of&
Tenant's to /r
Landlord's Date 3
This t a to a sadlamd on or rs F miry 15,2013.
September 6, 2013
James Holt
19 Enck Drive
Boiling Springs, Pa 17007-9727
Mr. Holt,
On July 29th, 2013 1 made you aware that the Heating system was functioning
improperly in that the central air conditioning ceased working at our location of 300
South Hanover St. Carlisle Pa 17103. This was after several weeks of you working
with Ed Kauffman, my Branch Manager in which he was personally communicating with
you that there was no working central air conditioning in the building. It is your
responsibility pursuant to the lease to maintain the system and your failure to maintain
the system is a breach of the lease. Your attempt to provide window unit air
conditioners as a replacement for the central air is inadequate and I informed you of
such on July 29, 2013. It is now September 6th, 2013, and I take your continued failure
to replace or repair the central air as a confirmation of your email dated July 29th, 2013
in which you indicated that you had no intention of repairing or replacing the central air.
As a result of your breach, it is my intention to remove my business from the property on
September 30th, 2013. Please plan on meeting Ed at the business on that day to
review the space and release the security deposit.
Sinc ely,
Chris Garner
President
Berks and Beyond Employment Services, Inc.
Sent certified Mail as well as Electronic Mail
Emmew
FREY & TtLEY
ATTORNEYS-AT-LAW
5 SOUTH HANOVER STREET
CARLISLE,PENNSYLVANIA 17013
ROBERT M. FREY
RETIRED
STEPHEN D. TILEY TELEPHONE (717)243-5838
Stiiey@freytiley.com
FACSIMILE(717)243-6441
ROBERT G. FREY
rfrey@freytiley.com
March 17, 2014
Berks and Beyond
926 Penn Avenue
Wyomissing, PA 19610
Attn: Mr. Chris Garner, President
Re: 300 South Hanover Street, 1 st Floor
Carlisle, Pennsylvania
Dear Mr. Garner:
As you know, you are in default under the terms of your lease dated
September 1, 2011, as amended by the Supplemental Lease Provision dated
January 23, 2013 and signed by you on March 1, 2013. You have failed to pay
rent since October of 2013. Rent is due through February 2014, as discussed in
my letters of September 9, 2013 and September 26, 2013. You have also failed
to pay utility charges, and the landlord incurred cleaning expenses.
Your lease provides for a 5% Late Charge and interest at the rate of 1.5%
per month. (Lease lines 52 through 67.) The lease also provides for a $95.00
administrative fee, reimbursement for landlord's time at the rate of$35.00 per
hour, court costs, and attorney's fees. (Lease lines 211 through 215.) You are
also responsible for any damages to the property, (Lease lines 182 throu h
192. As a settleme o e
Enclosed please find a spreadsheet showing this settlement offer. If
Pursuant to your lease (lines 52 through 67) this letter shall constitute
written notice that you must pay the rent, utilities, and cleaning expense, together
aQ»
9
Frq and Tiley
-
,attorneys �1t-Lav
-1r. C'hris Garner,Presiden:
Berks and Beyond
Re: 300 South Hanover Stree:, 1'Floor
Carlisle,Pennsvh;ania
:March 17, 2014
Page 2
with late charges and interest within 30 days. Those amounts total $7,362.34.
This letter constitutes further notice pursuant to your lease (lines 201 through
204) that your $1,000.00 security deposit has been forfeited. It has been applied
to the rent and other amounts due leaving a net $6,362.34 due within 30 days.
This letter shall also constitute written riotice that you must pay a $95.00
administrative fee, reimbursement for landlord's time at the rate of$35.00 per
hour court costs and attorne 's fees within 30 days, if the settlement offer set
Payment should be made to "Frey and Tiley Attorneys" and sent to the
above office. If you fail to pay this amount within 30 days of the date of this
letter, I will recommend to your landlord that legal action be brought against you.
I hope that this letter will result in the amicable resolution of this matter.
Yours truly,
.v
Stephen D. Tiley
S DT/pm
cc: Mr. James D. Holt (with enclosure)
Original via regular mail
Copy to Berks and Beyond by Cerified Mail No. 70193500000366292429
Holt v.Berks and Beyond
Due Date Description Amount 5% Interest to: Total Total After
(Or Service Due Late 7/31/14 Security
Period) Charge at 18.00% Deposit
1
1.5%Per Mo.) Adjustment
10/1/13 Rent 1,000.00 50.00 144.49 1,194.49
11/1/13 Rent 1,000.00 50.00, 129.21 1,179.21
12/1/13 Rent 1,000.00 50.00 114.41 1,164.41
1/1/14 Rent 1,000.00 50.00 99.12 1,149.12
2/1/14 Rent 1,000.00 50.00 83.84 1,133.84
7/8/13-10/3/13 W&S 545.60 545.60
10/4/13-12/31/13 W&S 81.08 81.08
1/1/14-2/28/14 W&S(Pro-Rated) 54.00 54.00
11/7/13 Electric 69.38 69.38
12/6/13 Electric 72.97 72.97
1/7/14 Electric 64.65 64.65-
2/13/14 Electric 397.43 397.43
3/11/14 Electric 461.63 461.63
Cleaning 120.00 120.00
Administrative Fee 95.00 95.00
Attorney's Fees To Be Determinted To Be Added
Court Costs To Be Determinted To Be Added
7,782.81 7,782.81
Less Credit for Security Deposit Retained: (1,000.00)
7/31/14 Net Due 6,782.81
WKST Holt v Berks and Beyond 8.11.14.xlsx
SHERIFF'S OFFICE OF CUMBERLAND COUNTY
Ronny R Anderson
F!LLD-Lis CE
Sheriff ,, „ t - THE P ROT FONOTAR
Jody S Smith
Chief Deputy
Richard W Stewart
Solicitor
20I1+ AUG 22 PM is 1
CUMBERLAND COUNTY
PENNSYLVANIA
James Daryl Holt
vs.
Berks and Beyond Employment Service, Inc.
Case Number
2014-4785
SHERIFF'S RETURN OF SERVICE
08/15/2014 10:00 AM - Deputy Tim Black, being duly sworn according to law, served the requested Complaint &
Notice by handing a true copy to a person representing themselves to be Donna Harman, Branch
Manager, who accepted as "Adult Person in Charge" for Berks and Beyond Employment Service, Inc. at
1909 Ritner Highway, #1, Carlisle Borough Annex, Carlisle, PA 17013.
TIM BLAC , DEPUTY
SHERIFF COST: $35.27 SO ANSWERS,
August 19, 2014
(c) CountySu;to Shoriff, Tcleosoft, Inc.
RONN-Y R ANDERSON, SHERIFF
BARLEY SNYDER
Justin A. Tomevi
Court I.D. No. 313661
100 East Market Street
York, PA 17401
(717) 846-8888
Fax: 717-843-8492
jtomevi*barley.com
r1LED-OFFICE
THE PROTHONOTARY
20Ili SEP 10 PM 3:55
CUMBERLAND COUNTY
PENNSYLVANIA
Attorneys for Defendant Berks and
Beyond Employment Service, Inc.
JAMES D. HOLT AND CAROLYN L. HOLT,
Plaintiff
V.
BERKS AND BEYOND EMPLOYMENT
SERVICE, INC.,
Defendant
COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY OF
PENNSYLVANIA
No. 2014-4785
To: James D. Holt and Carolyn L. Holt
c/o Stephen D. Tiley, Esquire
You are hereby notified to plead to the enclosed New Matter within twenty (20) days
from service hereof or a judgment may be entered against you.
BARLEY SNYDER
Date: September /0 , 2014
By:
Justin A. Tomevi
jtomevi@barley.com
PA 313661
100 East Market Street
York, PA 17401
717-846-8888
Fax: 717-843-8492
Attorneys for Defendant
BARLEY SNYDER
Justin A. Tomevi
Court I.D. No. 313661
100 East Market Street
York, PA 17401
(717) 846-8888
Fax: 717-843-8492
jtomevi@barley.com
Attorneys for Defendant Berks and
Beyond Employment Service, Inc.
JAMES D. HOLT AND CAROLYN L. HOLT,
Plaintiff
V.
BERKS AND BEYOND EMPLOYMENT
SERVICE, NC.,
Defendant
COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY OF
PENNSYLVANIA
No. 2014-4785
DEFENDANT'S ANSWER WITH NEW MATTER
Defendant, Berks and Beyond Employment Service, Inc., by its undersigned counsel,
files the following Answer with New Matter to Plaintiffs' Complaint:
1. Admitted.
2. Admitted.
3. Admitted.
1
4. Denied. The Lease is a writing that speaks for itself and no responsive pleading is
therefore required.
5. Denied. The Lease is a writing that speaks for itself and no responsive pleading is
therefore required.
6. Denied, The Lease is a writing that speaks for itself and no responsive pleading is
therefore required.
7. Denied, The Supplemental Lease Provision is a writing that speaks for itself and
no responsive pleading is therefore required.
8. Denied. Any implication that Defendant did not fulfill its obligations under the
Lease or Supplemental Lease Provision to properly vacate the property and provide notice to
Plaintiff is specifically denied.
9. Denied. Any implication that Defendant did not fulfill its obligations under the
Lease or Supplemental Lease Provision to properly vacate the property and provide notice to
Plaintiff is specifically denied. By way of further response, Defendant did not breach the Lease
or Supplemental Lease Provision. By way of still further response, Plaintiff failed to provide
Defendant with proper air conditioning to create a habitable environment.
10. Denied. The averments in paragraph 10 and its subparagraphs are specifically
denied. By way of further response, Plaintiff failed to provide Defendant with proper air
conditioning to create a habitable environment. By way of still further response, Defendant
would not have entered the Lease if central air conditioning would not have been provided.
2
11. Denied. The averments in paragraph 11 are specifically denied. Plaintiff had an
obligation to provide air conditioning to maintain a habitable environment. Plaintiff's attempt to
cool the premises with window units failed to provide a habitable environment. Because Plaintiff
was unwilling to repair the central air conditioning and the window units failed to create a
habitable environment, Defendant had no other option but to vacate the premises.
12. Denied. The September 9, 2013 Letter, which is not attached to the Complaint as
required by the Pennsylvania Rules of Civil Procedure, is a writing that speaks for itself and no
responsive pleading is therefore required. The remaining averments in paragraph 11 are
specifically denied.
13. Admitted in part and denied in part. It is admitted that Defendant vacated the
premises prior to September 30, 2013 as a result of the uninhabitable environment created by
Plaintiff. It is specifically denied that Defendant owes any rent or other expenses to Plaintiff as a
result of the uninhabitable environment created by Plaintiff.
14. Denied. After reasonable investigation, Defendant is without information or
knowledge sufficient to form a belief as to the truth of the allegations in paragraph 14. By way of
further response, Defendant specifically denies that it breached the Lease.
15. Denied. After reasonable investigation, Defendant is without information or
knowledge sufficient to form a belief as to the truth of the allegations in paragraph 14. By way of
further response, Defendant specifically denies that it breached the Lease.
3
16. Denied. The Lease is a writing that speaks for itself and no responsive pleading is
therefore required. Further, the averments in paragraph 16 of Plaintiff s Complaint constitute
legal conclusions for which no response is required.
17. Denied. The March 17, 2014 Letter is a writing that speaks for itself and no
responsive pleading is therefore required.
18. Admitted in part as denied in part. It is admitted that Defendant has not responded
to or made any payment to Plaintiff It is specifically denied that that Defendant owes Plaintiff
any money.
19. Denied. After reasonable investigation, Defendant is without information or
knowledge sufficient to form a belief as to the truth of the allegations in paragraph 19. By way of
further response, Defendant specifically denies that Plaintiff is entitled to any damages.
WHEREFORE, Defendant, Berks and Beyond Employment Service, Inc., requests
judgment in its favor and against Plaintiffs, James D. Holt and Carolyn L. Holt.
NEW MATTER
20. Plaintiffs failed to provide a habitable environment for Defendant by failing to
repair the central air conditioning.
21. Defendant was promised central air conditioning and would not have entered into
the Lease if central air conditioning was not promised for the entire term of the Lease.
22. Plaintiffs represented to Defendant that central air conditioning would be
available during the entire term of the Lease.
4
23. Plaintiffs' attempt to provide ineffective window units reveals that Plaintiffs did,
in fact, have an obligation to provide appropriate air conditioning.
24. Plaintiffs only reason for not repairing the central air conditioning is that Plaintiffs
did not want to spend money to do so, despite their obligation to provide a habitable
environment.
25. Plaintiffs' claims are barred by the applicable statute of limitations.
26. Plaintiffs' claims fail to state a cause of action upon which relief may be granted.
27. Plaintiffs have not alleged a legal basis to recover attorney's fees.
28. Plaintiffs failed to mitigate their damages.
29. Plaintiff's claims are barred in whole or in part by the doctrine of laches.
30. Plaintiff's claims are barred in whole or in part by the doctrine of unclean hands.
31. Plaintiff's claims are barred in whole or in part by the principles of release and/or
waiver and/or discharge and/or consent.
32. Plaintiff's claims are barred in whole or in part by the principles of unjust
enrichment and/or quantum meruit.
33. Plaintiff's claims are barred in whole or in part by principles of estoppel.
34. Plaintiff's claims are barred in whole or in part by the defense of accord and
satisfaction.
35. Plaintiff's claims are barred in whole or in part by the defense of failure of
consideration.
5
WHEREFORE, Defendant, Berks and Beyond Employment Service, Inc., requests
judgment in its favor and against Plaintiffs, James D. Holt and Carolyn L. Holt.
BARLEY SNYDER
4433777
By:
6
Justin A. Tomevi, 313661
100 East Market Street
York, PA 17401
717-846-8888
Fax: 717-843-8492
jtomevi@barle_y.com
Attorneys for Defendant Berks and
Beyond Employment Service, Inc.
VERIFICATION
I, Christopher Garner, on behalf of Defendant, hereby verify that the facts set forth in the
foregoing Answer with New Matter are true and correct to the best of my knowledge,
information and belief. I understand that false statements herein are made subject to the
penalties of 18 Pa.C.S.A. §4904 relating to unswom falsification to authorities.
Dated:
74 Li
7
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing document was served
this /0 day of September, 2014, by hand delivery, upon:
Stephen D. Tiley, Esquire
Frey & Tiley
5 South Hanover Street
Carlisle, PA 17013
BARLEY SNYDER
By:
Justin A. Tomevi, 313661
100 East Market Street
York, PA 17401
717-637-6239
Fax: 717-843-8492
jtomevi@barley.com
Attorneys for Defendant Berks and
Beyond Employment Service, Inc.
JAMES D. HOLT and
CAROLYN L. HOLT
Plaintiffs
. IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY,
: PENNSYLVANIA
C:
v. : CIVIL ACTION - LAW rn
cn
<
•
Defendant • NO.: 2014-4785 `D
BERKS AND BEYOND EMPLOYMENT :
SERVICE, INC.
REPLY TO NEW MATTER
AND NOW, come the Plaintiffs, James D. Holt and Carolyn L. Holt, by and
through their attorneys, Frey and Tiley, and file this Reply to the Defendants New
Matter, of which the following is a statement:
PV CD,
CJ -1
20. Denied. The averments of paragraphs 1 through 20 of the Complaint are
incorporated herein by reference thereto. In particular, see paragraphs 10, 11 and 12 of
Plaintiffs' Complaint. Plaintiffs' had no duty to provide air conditioning, or a habitable
environment as defined by the Defendant to include air conditioning. Defendant has not
cited any portion of the Lease, or Supplemental Lease Provision, in support of its
position. In fact, the Lease is to the contrary of Defendant's position. A copy of the
September 9, 2013 letter referenced at paragraph 12 of the Complaint is attached
hereto as Exhibit "A" and is incorporated herein as if fully set forth herein.
21. Denied. The averments of paragraph 20 of this Reply, and paragraphs 1
through 19 of the Complaint, are incorporated herein by reference thereto.
Furthermore, the statement that "Defendant was promised central air conditioning..." is
a misstatement of fact and wrong. No party made any such promise to Defendant and
Defendant has failed to specify when, and by whom, the alleged promise was made. By
way of further Reply, the averments of this paragraph are denied as Plaintiffs have no
knowledge of what Lease Defendant would have entered into, or would not have
Complaint — Holt v. Berks and Beyond Page 1 of 4
entered into, such knowledge being solely within the control of the Defendant and
furthermore irrelevant to this Lease and proceeding. Plaintiffs only have knowledge of
the lease that Defendant actually entered into.
22. Denied. The averments of paragraphs 20 and 21 of this Reply are
incorporated herein by reference thereto, as well as the averments of paragraphs 10
and 11 of the Plaintiffs' Complaint.
23. Denied. The averments of paragraphs 20 and 21 of this Reply are
incorporated herein by reference thereto, as well as the averments of paragraphs 10
and 11 of the Plaintiffs' Complaint.
24. Denied. The averments of paragraphs 20 and 21 of this Reply are
incorporated herein by reference thereto, as well as the averments of paragraphs 10
and 11 of the Plaintiffs' Complaint. By way of further Reply, Plaintiffs note paragraph
10(c) of the Complaint where it was stated to the Defendant prior to entering into the
Lease that the central air conditioning system was old, and that Defendant was free to
use if to as long as it worked, but that if it broke it would not be repaired and so to this
extent, it is admitted that Plaintiff did not want to spend the money to repair the central
air conditioning, but this fact was stated to the Defendant in the Lease negotiations, and
the Lease does not include a landlord obligation to provide any air conditioning.
25. Denied. The averments of this paragraph set forth a conclusion of law to
which no responsive pleading is required. By way of further Reply, the Complaint was
filed within less than a year of Defendant's breach.
26. Denied. The averments of this paragraph set forth a conclusion of law to
which no responsive pleading is required. Strict proof at trial is demanded.
27. Denied. The averments of this paragraph set forth a conclusion of law to
which no responsive pleading is required. Strict proof at trial is demanded. See also
paragraph 16 of the Complaint.
Complaint— Holt v. Berks and Beyond Page 2 of 4
28. Denied. The averments of this paragraph set forth a conclusion of law to
which no responsive pleading is required. Strict proof at trial is demanded. See also.
paragraph 14 of the Complaint.
29. Denied. The averments of this paragraph set forth a conclusion of law to
which no responsive pleading is required. By way of further Reply, the Complaint was
filed within Tess than a year of Defendant's breach.
30. Denied. The averments of this paragraph set forth a conclusion of law to
which no responsive pleading is required. Strict proof at trial is demanded. By way of
further Reply Defendant has failed to aver any facts to support the allegation of "unclean
hands."
31. Denied. The averments of this paragraph set forth a conclusion of law to
which no responsive pleading is required. Strict proof at trial is demanded. By way of
further Reply Defendant has failed to aver any facts to support the allegation of "release
and/or waiver and/or discharge and/or consent."
32. Denied. The averments of this paragraph set forth a conclusion of law to
which no responsive pleading is required. Strict proof at trial is demanded. By way of
further Reply Defendant has failed to aver any facts to support the allegation of "unjust
enrichment and/or quantum meruit."
33. Denied. The averments of this paragraph set forth a conclusion of law to
which no responsive pleading is required. Strict proof at trial is demanded. By way of
further Reply Defendant has failed to aver any facts to support the allegation of
"estoppel."
34. Denied. The averments of this paragraph set forth a conclusion of law to
which no responsive pleading is required. Strict proof at trial is demanded. By way of
Complaint — Holt v. Berks and Beyond Page 3 of 4
further Reply Defendant has failed to aver any facts to support the allegation of "accord
and satisfaction."
35. Denied. The averments of this paragraph set forth a conclusion of law to
which no responsive pleading is required. Strict proof at trial is demanded. By way of
further Reply Defendant has failed to aver any facts to support the allegation of "failure
of consideration."
WHEREFORE, Plaintiff/Landlord prays Your Honorable Court for judgment
against Defendant/Tenant in the amount of .$6,782.81, plus interest on unpaid rent at
the rate of 1.5% per month after July 31, 2014, plus attorney's fees and costs.
Dated: 2ca2,0/ Respectful) submitted
Stephen D. Tiley, Esquire
Frey & Tiley
Counsel for Plaintiff
5 South Hanover Street
Carlisle, PA 17013
(717) 243-5838
Supreme Court I.D.#32318
By
VERIFICATION
I verify that the statements made in the foregoing Reply to New Matter are true
and correct, partially upon personal knowledge and partially upon my belief; to the
extent language in the Reply to New Matter is that of my attorneys, I have relied upon
my attorneys in making this Verification. I understand that false statements herein are
made and subject to the penalties of 18 Pa. C.S. §4904 relating to unsworn falsification
to authorities.
Dated: % o� J /ty
Dated: off-..-� 11{
Complaint — Holt v. Berks and Beyond
Carr yn L. Holt
Page 4 of 4
FREY & TILEY
ATTORNEYS -AT -LAW
5 South Hanover Street
Carlisle, Pennsylvania 17013
ROBERT M. FREY
RETIRED
STEPHEN D. TILEY
stiley@freytiley.com
ROBERT G. FREY
rfrey@freytiley.com
September 9, 2013
Berks and Beyond
926 Penn Avenue
Wyomissing, PA 19610
Attn: Mr. Chris Garner, President
Re: 300 South Hanover Street, 1st Floor
Carlisle, Pennsylvania
Dear Mr. Garner:
TELEPHONE (717) 243-5838
FACSIMILE (717) 243-6441
Please be advised that I represent Mr. James D. Holt, your landlord
pursuant to your lease dated September 1, 2011 for the above referenced
property. I have reviewed your September 6th letter indicating that you feel that
a breach of the lease has occurred and that you intend to vacate on September
30th. Please be advised that no breach of the lease has occurred and should you
fail to continue your rental obligation through February 28, 2014, pursuant to the
Supplemental Lease Provision which you signed on March 1, 2013, you will be
default undepthe terms of your lease and an action to collect that unpaid rent will
be brought against you.
I have also reviewed your lease of September 1, 2011. Heater
maintenance is referenced at page three line 119, but air conditioning is not.
Either your realtor, or manager, was told at the time they were looking at the
property and considering renting, that the central air conditioning was old and
would not be replaced if it failed. Nevertheless, that air condition system was in
operating condition at the time you entered into the lease, and continued to
operate for a considerable time thereafter.
Notwithstanding the fact that the landlord does not have an obligation to
provide an air condition system under the terms of your lease, when the central
system failed Mr. Holt, in an effort to "go the extra mile," provided two large, floor
standing with window exhaust, portable air condition units. He believes these are
adequate to provide air condition in this suite of offices. I understand that you felt
;150.i:=41114,-
Frey and Tiley
Attorneys -At -Law
Mr. Chris Garner, President
Berks and Beyond
Re: 300 South Hanover Street, 1" Floor
• Carlisle, Pennsylvania
September 9, 2013
Page 2
the need to purchase another small air conditioning window unit. We do not
believe that was necessary, particularly if one of the portable units that Jim
provided had been moved.
Therefore, although the landlord had no duty to provide an air conditioning
system, he in fact did so. Under the terms of your lease, including the
Supplemental Lease Provision, rent must continue to be paid through February
of 2014, as neither the tenant nor the landlord choose to end the lease on August
31, 2013 by providing 120 days advance notice. Of course, you were aware of
this as you paid September rent. You are not obligated to continue leasing the
property after February 28, 2014 and so given your letter of September 6, 2013,
we will assume that you intend to vacate on, or shortly before, that date and that
you will arrange for final inspection at that time.
I hope that this letters results in a better understanding of your relationship
with the landlord and that both of you will be able to amicably work together over
the next several months.
SDT/tI
cc: Mr. James D. Holt
Sincerel you
Stephen D. Tiley
JAMES D. HOLT and
PLEAS
CAROLYN L. HOLT
Plaintiffs
v.
IN THE COURT OF COMMON
OF CUMBERLAND COUNTY,
PENNSYLVANIA
. CIVIL ACTION - LAW
BERKS AND BEYOND EMPLOYMENT :
SERVICE, INC.
Defendant
NO.: 2014-4785
CERTIFICATE OF SERVICE
1 hereby certify that I served a true and correct copy of the Reply to New Matter
on September 26, 2014, by placing a certified true and correct copy of the same in the
United States mail, postage pre -paid, addressed to:
Date:
Justin A. Tomevi, Esquire
Barley Snyder
100 East Market Street
York, PA 17401-1219
/7'
Stephen ID . Tiley, Esquire
Attorney for Plaintiffs
5 S. Hanover Street
Carlisle, PA 17013
(717) 243-5838
Attorney I.D.#32318